Dazed and confused: Are you administering the contract... or the construction?

The following article was written by Cate Huston, engineering manager at Automattic, the people behind websites and applications such as WordPress.com, WooCommerce, Jetpack, Simplenote, and Longreads. You can read more of Huston’s writing at cate.blog.

When I was a new manager, I struggled to find a sense of accomplishment. As I’ve moved on to manage managers, I’ve seen this become a challenge for them, too. It’s hard to find the right success metrics for judging our work because our goal is to make the team better. It’s only natural that we spend more time crediting our teams rather than ourselves.Some managers deal with this predicament by viewing their success metric as being available to their teams 24/7 (unsustainable), or by lines of code (which would be like editors focusing on the number of words—absurd). Others “perform good manager” in one-on-one meetings, team meetings and feedback cycles, but it doesn’t really make them feel that elusive sense of accomplishment. To that end, I’ve compiled the following list of questions I use myself and when coaching other managers to reflect on management style and team effectiveness:

1. Can I take a week off?

A rough one to start with if you lean toward constant availability as your metric, but there’s nothing like a week off (or more!) to show which of your responsibilities has the most impact. When you return, pay attention to what you find. What’s surprising to you? What did people miss? What did they not need you for?If your team is in a tough spot, and you don’t feel you can completely disconnect, try designating one trusted person to check in with each day.

2. Can problems be handled without me?

The engineering groups I lead have infrastructure teams dedicated to building and releasing software. Recently, one of our team leads was away when an unplanned release was required. His team, on their own, pushed a new version and compiled a detailed account of what had gone wrong, with next steps.This is huge—you’ll never get away from using constant availability as your metric if every emergency must come to you. Ensuring that everyone on the team feels a sense of responsibility and ownership, and designating a directly responsible individual (DRI) are key.

3. Does my team consistently deliver?

Healthy teams ship consistently and keep shipping over time. We all have projects that become unexpectedly complex, and every one may have a reasonable explanation, but if you look at the overall picture, is the team delivering more often than not?

4. Do people tell me what they think?

One thing every new leader needs to learn is that people are less candid with them. We especially need to make ourselves available to people who may not presume we want to hear from them—otherwise you just hear the loudest voices. It’s also important to note how people give you critical feedback. Do they wait until it’s something that really frustrates them or is it an ongoing conversation? Will people tell you what they are worried or insecure about?

5. Do people on my team treat each other well?

Effective teams are inclusive teams. As a leader, it’s up to you to cultivate a respectful team environment and to make it clear that you won’t tolerate discriminatory language or behavior. Beyond that, you can set some values around reward and advancement that make it clear that success on your team is something that happens interdependently, not as a competition.

6. Is the team self-improving?

Self-improving teams critique and change things as part of their process. They’re not afraid to discuss what worked and what didn’t, make suggestions and implement changes knowing that some changes will fail.It can be really hard to get teams reflecting on what went right and wrong with a project, because the process is scary. But getting to a place where these “postmortems” are a matter of course is the outcome of a self-improving team.

“Contract corner” is a series of columns occasionally published our Design Profession team’s monthly newsletter, Communiqué. These columns focus on onerous contract clauses and provide guidance for negotiating a contract that will help you prevent problems. This month, we look at what you can do to protect yourself when an owner wants to require you to hire a specific subconsultant.

We understand that owners can be very demanding when it comes to their projects—they might want you to specify a particular material or mimic a design they’ve seen elsewhere. They also might insist you hire a specific subconsultant—one you may not know or don’t want to work with, or a sub that may be unqualified—as part of your project team.In addition to the lack of autonomy such a requirement may represent, it forces you to assume the liability for the services of the sub based on privity of contract. It also requires you to protect yourself from any demands against you based on the negligence of a subconsultant you never planned to hire in the first place.The solution can be found in trying to reason with the owner and, failing that, incorporating the right protection into your contract with the owner. Here, you and your lawyer might want to get creative. For example, if the contract provides the owner with third-party beneficiary status, the owner, in certain cases, could pursue a cause of action directly against the subconsultant without bringing you into it.When you find yourself being pressured by an owner to hire a specific subconsultant, here are a few different suggestions for how you might deflect the owner’s wishes and, if the owner’s not willing to back down, how you might structure your contract:

• As you know, my reputation, along with my exposure to liability, is on the line whenever I design a project. My custom is to work with subconsultants with whom I’ve worked well in the past, or for whom I’ve received a sterling recommendation from others I depend on. Why don’t we agree that I will evaluate any recommendation you have and, if the subconsultant measures up, I will seriously consider hiring him or her for the project?
• While I prefer to hire subconsultants with whom I’ve worked in the past, I will hire the subconsultant you want as long as the contract gives me your assurance that you will make no claim or bring any action against me as a result of this subconsultant’s services. In addition, the contract should contain an indemnification that satisfies the following requirements:
• States that I have hired this subconsultant at your instruction and as a convenience to you
  Obligates you to defend and indemnify me for all damages to you or to any third party that have been caused by the negligence of the subconsultant you’ve instructed me to hire
  Applies without requiring me to prove negligence by the consultant, causation, or damages
• If you want me to hire a specific subconsultant, then let’s write a contract that provides you with third-party beneficiary status. That way, if you seek damages that you believe have been caused solely by a subconsultant’s negligence, you’ll be able to pursue a cause of action directly against the subconsultant without involving me. We’ll also need to include language that makes it clear that you’ve instructed me to hire this subconsultant and I am doing so as a convenience to you.

Work with your lawyer to draft language that encompasses these requirements. In addition, insist on a solid contract with each subconsultant that contains a clear scope and a strong indemnity, and check to see that the subconsultant is properly insured, particularly for professional liability.

As extreme weather events hit more frequently, many observers believe their impact may affect the standard of care for design professionals.

Last fall, an analysis by the U.S. National Oceanic and Atmospheric Administration (NOAA) showed that significantly higher rainfall in parts of Texas are redefining 100-year events as 25-year events. This won’t come as a surprise to Houstonians, who have seen three “500-year” floods in as many years. And it’s not just Texas. In the U.S. and Canada, we’re seeing rising sea levels on the East Coast, drought and fires in the West, and more extreme heat,flooding and intense storms in the midsections.

The NOAA Texas analysis is expected to result in updated Federal Emergency Management Agency (FEMA) flood plain maps and revised building codes and regulations in that state.

But what about elsewhere? When maps and codes have yet to catch up to the new reality, what are a design professional’s obligations? Is an engineer expected to consider the risk of damages that can result from failure to take into account disasters caused by a changing climate? Is she duty-bound to design for “resiliency” even if codes and maps don’t require it? If an architect bases his designs on current maps and codes, is he still exercising the appropriate standard of care? Is there a legal standard that applies to design choices that could be affected by climate change down the road?

Randy Lewis, Vice President, Loss Prevention and Client Education for AXA XL’s Design Professional group, expects a growing number of lawsuits against A/Es from clients who claim that their projects should have been able to withstand foreseeable extreme weather events.

“It’s possible that knowledge of climate change impacts could be used to establish a legal duty,” Lewis says. “If a client claims you were negligent because the structure you designed didn’t withstand a 500-year flood, the client’s attorney may argue that you based your design on maps you knew—or should have known—were out of date, given climate projections. And it’s conceivable that some judge or jury would agree.”

In a recent study, architects and engineers reported that although they recognized that climate change will impact their responsibilities, some are reluctant to raise the issue with their clients. (See the sidebar, “Resources.”) They say that conflicting signals from different levels of the U.S. government, the additional expense to build structures that can withstand extreme weather events, and the fact that codes and regulations have yet to catch up to the prevailing science all make it harder to convince clients of the need for proactive design.

In the U.S., the federal government has sent inconsistent signals. The Fourth National Climate Assessment, released in late 2018, reports that, “the evidence of human-induced climate change continues to strengthen and…impacts of climate change are intensifying across the country.” But President Trump has rescinded executive orders that required the federal government to account for climate change and sea-level rise when building infrastructure and when weighing national security and other issues, although the FY 2019 National Defense Authorization Act requires the Department of defense to implement multiple climate and energy resiliency measures and standards. FEMA’s latest four-year strategic plan deletes mention of climate change and sea-level rise.

A changing standard of care?

“From a risk standpoint, the question is whether the standard of care for the design professions has changed,” Lewis says. “Most observers believe that it has and will continue to evolve to reflect prevailing scientific understanding, data, media reports and our own experience.”

The standard of care, of course, obligates architects and engineers to render their services with the ordinary degree of skill and care that would be exercised by other reasonably competent practitioners of the same discipline under similar circumstances, taking into consideration the contemporary state of the art and geographic idiosyncrasies.

“There are two important points about the standard of care,” Lewis says. “First, the application of the standard of care is subjective. Codes, regulations and licensing laws form a framework, as do the specific circumstances of a project and the work of one’s peers, yet the applicable standard of care continues to change as the practice evolves. What is reasonable reflects the contemporary state of the art. Given Houston’s recent history, for instance, it may not be reasonable to design to a 100-year flood in some parts of the city.

“The standard will vary depending on where the project is located. A/Es in Boston will need to take into account rising sea levels, for example, while those in, say, Alberta should consider extreme heat and increased fire danger.” Lewis knows of one AXA XL insured in the Midwest who routinely designs for floods 30-percent higher than those anticipated by current flood maps.

The second point, Lewis says, is that compliance with code does not necessarily mean that a design satisfies the standard of care. “Under some circumstances, merely designing to meet code requirements may still be deemed negligent if the circumstances and the applicable standard of care dictate a design solution that clearly exceeds the code,” he says.

The moving needle

Design professional associations, including the American Institute of Architects (AIA) and the National Society of Professional Engineers (NSPE), are helping to move the standard-of-care needle. In Principles of Climate Adaptation and Mitigation for Engineers, Engineers Canada cautions that, “Changing climate conditions, particularly weather patterns that deviate from historical climate ranges, may adversely affect the integrity of the design, operation, and management of engineered systems. It is the engineer’s duty to take all reasonable measures to ensure that those systems appropriately anticipate the impact of changing climate conditions.”

The American Society of Civil Engineers (ASCE) has adopted a policy statement that says, in part: “There is a growing need for engineers to incorporate future climate change into project design criteria.” An ASCE committee has released a manual of practice for climate-resilient infrastructure. (See “Resources.”)

Certification organizations are also weighing in. The U.S. Green Building Council (USGBC) and Green Business Certification Inc. (GBCI) have released their newest rating system, RELi 2.0, which is intended to help “identify and reduce the risk of damage in the event of a natural disaster, economic disruption, resource depletion or other crisis for buildings, homes, neighborhoods and infrastructure.”